Discussion of Submissions

Meeting report

JOINT AD HOC COMMITTEE ON THE OPEN DEMOCRACY BILL
19 October 1999
DISCUSSION OF SUBMISSIONS

Documents handed out:
Expanded Summary of Submissions

SUMMARY
Morning session
Chairperson de Lange outlined the issues the Committee needed to address with regard to this Bill. Going through the submissions, certain issues in Clauses 1 to 9 were clarified and others were flagged for future deliberation. Chairperson de Lange said that additional written submissions can be made but the sooner that they are submitted for consideration the better.

Afternoon session: Clauses 10 to 18, as well as Clause 24, were discussed.

MINUTES
Morning session
Chairperson de Lange outlined some of the key issues that the Committee needed to address in the coming weeks:
SCOPE
- who has been excluded/included in the Bill (so far as public information)
- each exemption
- override
- outsourcing: the issue of when you have had access to information in the past because it was public, but then the company privatized. How does this change the access to the information?
- "right to know" - having the right to certain public information automatically

FEES
- Who is commercial? Non-commercial?
- Means test
- How to deal with the indigent
- Should public representatives have to pay a fee?

ENFORCEMENT (external) MODELS
- keep the legislation as it stands
- change the legislation to include the Magistrates' Courts
- administrative tribunal
- information officer (a body created in between the courts and the departments that would have the power to mediate and adjudicate)
- tribunal (inquisitorial)
- using the Magistrates' Courts to create designated courts with special procedures

WHISTLEBLOWING
- Is the private sector included?
- Should this be in a separate act?
- Should there be criminal sanctions?

HORIZONTALITY
- interpreting the Constitution
- how should they give effect to the right?
- give effect at a later time?
- go with the Bill as it is
- mix the current legislation with already existing legislation
- COSATU's suggestion
- total redraft

IMPLEMENTATION
- should we adopt a phase-in approach?
- time frames for getting information
- Archives Act and how does it fit in with the ODB?
- how does the Administrative Justice Bill fit in?

The Committee then moved on to look at the submissions. Not all of the submissions were in the summary. All of them should be summarised by 20/10/99. The Committee may have to go back and review some of the sections of the Bill again in relation to those submissions not yet included.

Part I
Clause 1: Introductory Provisions
- The definition of "inaccurate" was looked at, but nothing was decided. The Committee will wait to discuss this further when they have all of the submissions in the summary.

- Definition of "government body" - the question was whether or not to exclude the Cabinet.
Ms Camerer (NNP): asked if they should get a legal opinion on the issue, because she wants the cabinet included in the definition of government body
The Chair stated that this was really a policy decision and not a constitutional issue because the Bill had already been certified as being constitutional. It was concluded that this would be discussed later.

- The issue of whether court administrative functions should be included as being information that is accessible.
The Chair has no problem adding them in, but he knows that the judges want to be excluded. He raised certain questions: how adding them in would affect the Administrative Justice Bill; would adding them in be problematic because of the volume of papers and because most court records are already available to the public.

Mr Masutha (ANC) said that there must be some guiding principles on this information to get what is already in the Bill. If the information is already accessible, then it ought not to be duplicated in this legislation.

It was decided that the Committee needs to get more information on this issue so for now they let the issue stand

In summary:
- wait to discuss the definition of "inaccurate" until all submissions in summary
- reject the argument that parastatals should be excluded
- stand on the issues of: environment, Cabinet, judicial information

Clause 2: Application of Act
Discussion of this section will be suspended until the Committee has all of the submissions

Clause 3: Objects of Act
The State Law Advisors have a proposal for 3(1)(a), which they will distribute at a later date

Clause 4: Designation of Information Officers
The Chair noted that the Bill does not say what type of person to make the information officer. A lot of the changing of the culture in the department is going to depend on who this person is.

Dr Delport (DP): Keep in mind that we are looking at governmental bodies and the costs involved in creating a whole new structure. Do you want a new culture or do you want access to come first? Need to keep the Bill flexible so that smaller organizations are not unduly burdened by this provision

Chair: Who do you appoint in the governmental body for this job? It is true that every body must appoint an information officer

Mr Masutha (ANC): What about delegating powers? What if the Public Protector was to say to the departments that they had to designate someone at a minimum level within the organization - someone with a certain degree of responsibility.

Chair: You must already be at a certain level in the organization for others to have confidence in your role as information officer

Ms Smuts (DP): The Bill says "designate" so the organization can really choose whomever they wish, but they need someone above the more powerful heads of the organization so that the Bill will foster the kind of culture that it was intended to.

Chair: Again we need to look at the level of the office. Is the Bill too inflexible? He added that he did not support the Human Rights Commission (HRC) having the role of monitoring whether or not people were complying with the ODB.

Mr Masutha (ANC): What if we were to allow the head of the department to be the information officer with the power to designate down?

Chair: The problem with that option is with the internal appeal process. You want the internal appeal to happen at the highest level, which is the head of the department.

Mr Masutha (ANC): Could the problem be resolved by giving the appeal power to the Minister?

Ms Jana (ANC) pointed out that was the point of section 4(4).

This issue was flagged for future debate as well as the issue of delegating a deputy. These are points that need to be clarified.

Part 2
Clause 5: Guide on how to use Act
There was a suggestion to delete 5(2)(c )(ii) and (iii), but this will not happen.
There was another suggestion to include procedures on how to go about making an application to request information, but provisions for this are already in the Bill.

Clause 6: Manual on functions of . . .governmental body
Ms Smuts (DP) asked if the Bill does not give access only to existing documents.

Chair: No, there are circumstances when departments will be creating new documents from existing documents. This is based on the Australian experience. There are instances where research is done rather than just the mere copying of documents.

Ms Smuts (DP): Surely there is an obligation that information and answers be generated, but this is different from questions asked of the department by MP's.

Mr Masutha (ANC): What is it that is going to be generated? We must debate on this. There may be situations where a department is willing to help the person making the request, but the legislation must then be lax on the times frames in which the departments have to get the information out. This must happen in order to foster the kind of culture that we want.

Ms Smuts (DP): Where do the old documents go? Where are they now?

Ms van Schoor (state law advisor) said that the documents that have not been shredded are in the department's archives. The Chair asked to have more information on this.

Ms Chohan-Kota (ANC): wanted clarification between the Administrative Justice Bill and this Bill on this issue.

The Chair suggested that perhaps all of the clarifications should be left up to regulations. The legislation should just demand that the governmental bodies get a manual. This could be done by inserting a clause at the end of this section saying that the bodies must make a manual, but that guideline must be tabled (not approved) in Parliament. Another way of dealing with this problem would be to say the guide and manual must be drafted by a particular body. A final suggestion would be to add an explanation at the end of the section to explain how this legislation works with other legislation.

There was a suggestion to change d(ii) from "information bank" to "data base". This change will be made.

Clause 7: Information in telephone directory
There were no suggestions in any of the submissions on this section but the committee discussed the issue of the Communications Director-General being responsible for this publication. The issue was that if Telkom is responsible for the telephone directory, then is it constitutional to put a legal duty on the Director-General to tell Telkom, a public enterprise, to do something?

Ms Chohan-Kota (ANC) suggested putting the obligation on the departments to put the information in the telephone directory in the government section.

Chair: Is it possible to put what is currently in 7(1) in regulations and put in the legislation that departments have the obligation to take measures to put the information into the telephone directory.

Clause 8: Announcement of public safety or environmental risk
The Chair asked why there is this special category of information that is excluded from exemption? The state law advisor said that this provision was put in because these are instances where there is an overriding public interest to disclose.

Ms Chohan-Kota (ANC) said the way this section was being dealt with was appalling. The possible consequences of such a section really need to be looked at.

The Chair wondered what other countries are doing regarding this duty to announce a risk?

Ms Smuts (DP) felt that this right put a positive duty on the government to do certain things, which is good because these are cases where someone has not asked for the information but really needs to know of it. This suggestion had come from the Legal Resources Center who felt the duty should be on the government because it is likely that they will be the first to know when there is a public risk.

Chair: This Bill is limited to having access to written information. When would this section kick in and why? If this applies to all governmental bodies, then why does it not apply to private bodies as well?

Mr Masutha (ANC): believed this section is misplaced. It does not belong in this legislation because it is not an information issue. Besides how would this provision apply retroactively?

Chair: How would we enforce this? We are going to leave this issue to the state law advisors to research further.

Ms Jana (ANC) wanted to know what the consequences are for non-compliance or failure to meet the guidelines in this provision?

Mr Smith (IFP): Does this section really belong here? You also have problems of the consequences when the information is released to the public.

The chairperson said that they would flag this clause under "Scope" issues and return to it later.

Part 3
Chapter 1: Right and Manner of Access
The issues raised here were: how the Bill will apply retroactively and how this Bill affects the enforcement of other legislation.

Mr Smith (IFP): What exactly does "access" mean?
The Chair said access really depends on the situation. Sometimes it could mean simply copying the documents, but sometimes it would require research and the use of several documents.

Mr Swart (ACDP) said that access is covered in clause 25.

Chair: Does this Bill change the Archive Act? Say any old act is passed will all of that information be excluded from this act? The Chair does not like section 43 because again it expands the HRC's role too far. Essentially, does this Act supercede all other Acts?

Mr Masutha (ANC): This Act may not be comprehensive enough if it in fact supercedes all other Acts.

Mr Smith (IFP): It would be bad if this were the only Act to deal with access to information, because it would require the Committee to do an in depth analysis of all current Acts having anything to do with access to information.

Chair: For example, why should information from the Justice department be harder for me to access than that from the Welfare department? Will it be unconstitutional to allow for a differential approach to access amongst the departments?

Mr Smith (IFP): There is already some level of differential allowed in the Bill.

Chair: This is true, but it really comes down to the degree of differentiation.

Mr Durr (ACDP): Where do the political parties fit into all of this?

Chair: They are considered private bodies so we will deal with that later.

Ms Jana (ANC): It appears as though there is no conflict because the Bill says that if you cannot access the information through this Bill, then you have to access it through other legislation. How does the HRC fit in?

Ms van Schoor (state law advisor): Clause 43 is about the process of access NOT access itself. There are over 60 Acts already that have clauses dealing with access to information. Clause 43 is comparable to that which other countries have. Rather than using the HRC it is possible to change the Bill to use the Government Gazette. The ODB still applies to that information that has not already been made available to the public. Clause 43 only deals with information that has already been made available to the public.

Chair: It is not our intention to replace provisions in other Acts relating to access to information. This Act makes access to information open where other Acts prevent that access. Other legislation cannot make access more onerous.

Afternoon session:
Clause 10
The Chairperson said that no submissions have been received relating to this clause. Mr Lever (DP) asked why this clause is included if there is an exemption (elsewhere) in clause 35. Ms van Schoor responded that the two clauses are not the same. In one clause one can apply for exemption, whereas in the other clause one cannot.

The Chairperson said that the principle underlying this clause is if civil or criminal discovery is not provided for by other laws this Bill cannot be used for such discovery. The principle is good, but the actual drafting of the clause needs to be reconsidered. The Chairperson said that Ms van Schoor will look into the wording of the clause and the views of the committee.

Clause 11 (Right of disclosure)
Two submissions have been received on this clause, which says that information requested may be published or disclosed. Mr Lever expressed the opinion that he does not agree with the ESKOM submission.

Ms Smuts (DP) said the point of departure is that government information does not belong to anyone and should be available to the press and the public at large.

Mr Masutha (ANC) expressed the opinion that this clause should not only be subject to common law, but also made subject to existing statutory law. There are, for instance, statutory laws which prohibit the publication of certain information of certain departments, especially Defence.

Ms van Schoor responded that many Acts prohibit publication of certain information and the idea behind this Bill is to undo that.

The Chairperson said that there is a definite need to protect "good" information which should not be published because of its nature, but the problem is how to protect the "good" ones without affecting the "bad" ones. Ms van Schoor was requested to look into this issue.

Clause 12
This clause should be looked at with clause 43.

Clause 13
The Chairperson proposed that discussions on this must wait for the submission by South African Council of Churches.

Clause 14 (Duty to assist requesters)
The position in terms of this clause is that people who wish to request information should be able to approach any governmental body and its Information officers must assist and direct people to the appropriate department, free of charge. ESKOM, as a governmental body, has a problem with this in that people will flock to their offices and they would have to assist and refer people to the correct departments.

Ms Taljaard (DP) said that the ESKOM submission makes sense in that most of their offices are very accessible to people and people will simply approach the nearest office for assistance and that may have disastrous consequences for ESKOM.

Mr Masutha (ANC) suggested that perhaps only the structures of government should be made subject to this provision. This suggestion was supported by the Chairperson who suggested two further options to be considered. Firstly that the clause remains as it stands and secondly that "another" is deleted in clause 14(1) and then add only a duty on governmental bodies to assist.

Clause 15 (Transfer of requests)
Telkom's concern about this leading to 'an unbearable administrative burden' was dismissed. No other submissions have made reference to this clause and the committee had no comments to make on it.

Clause 16
If the information officer of a governmental body has received a request for information, the head of the body must ensure the preservation of the information during the period taken to grant or refuse the request.
Although no submissions have been received on this clause the committee did have some concerns.

Mr Schmidt (DP) asked why the head of the body concerned was responsible for preservation and not the information officer. Ms van Schoor said that as this clause was included to stop destruction of records, the head of a body must carry responsibility for the possibility that this might occur.

Adv. de Lange wanted to know if there is a crime attached to the destruction of records. It emerged that only a small penalty is involved. Adv. de Lange then requested the Department to investigate whether destruction should be a criminal sanction. Mr Schmidt said that the whole clause should be looked at again because once an initial request has been dealt with, it would not be criminal to then destroy the record. He suggested that preservation must remain a duty until a certain amount of time after the request or after certain stipulations have occurred.

Adv. de Lange suggested that the clause be looked at regarding the Archive Act to ensure the ODB does not substitute this.

Clauses 17, 18 and 24 (Payment of request fee, deposit and access fee)
These clauses set out the fee structure for requesting and receiving information so were discussed together. No submissions have been received on Clauses 17 or 18 and only one on 24 but they were debated at length by the committee with various opposing views emerging.

There are three different types of 'requester':
- Commercial requester
- Non-commercial requester - this includes requesters seeking information for the purpose of gathering and disseminating news, i.e. newspapers and broadcasters.
- Personal requester - this is when a requester seeks access to information about themselves.

Each type of requester faces different charges:
- Commercial requester - (i) must pay a request fee; (ii) must pay a deposit of not more than one third of the predicted access fee; (iii) must pay an access fee for reproduction and for search and preparation.
- Non-commercial requester - (i) does not pay a request fee; (ii) must pay a deposit of not more than one third of the predicted access fee, if it is expected that the search and preparation of the record will require more than the prescribed hours; (iii) must pay an access fee for reproduction and for search and preparation for any time in excess of the prescribed hours.
- Personal requester - (i) does not pay a request fee; (ii) does not pay a deposit; (iii) must pay an access fee for reproduction only.
- Members of parliament, provincial legislatures or municipal councils making requests in connection with their work pay no deposit or access fee. However as they are neither non-commercial or personal requesters they receive no specific exemption from the clause 17 on request fees. It would appear that they could have to pay this.

Adv. de Lange wondered if it was right that MPs should be excluded from some payments. Ms Chohan-Kota (ANC) however was concerned that MPs would be defined as 'commercial requesters' when they requested records not directly connected to their work. Ms Camerer (NNP) was also concerned about this and whether queries on behalf of constituents would be seen as connected to the work of an MP or if they might be seen as personal requests. She was adamant that MPs should not have to pay for access and was pleased the fees structure distinguished them and sighted many reasons why, including the need to aid constituents and the 'whistle blowing' role the opposition need to be able to play. Mr Smith (IFP) stated that as MPs they were accountable to both parliament and the public and they should not have to pay for this accountability. However Adv. de Lange was still unhappy. He argued that people could make all their claims through MPs rendering the fee structure irrelevant; that MPs will no longer have to access information on behalf of their constituents when the point of the Bill is to allow them to access things themselves; and that MPs already have massive free access through their involvement with the parliamentary system. Mr Gaum (NNP) disagreed with this last point as there are specific differences between the right to request information and the right an MP has to ask questions in parliament and committees. It was decided that the fees for MPs must be further investigated and that the Bill must be clear on what MPs should and should not pay for, they must not float in between categories.

Adv. de Lange also expressed concern that there was a cap on what newspapers and broadcasters would pay for. They fall under non-commercial requesters yet they make profits. Ms van Schoor said that the fee structure had been influenced by the equivalent United States structure. This exempted newspapers from various fees because they are seen as a vital source of accessible information. Mr Smith agreed that the media have an important public role to play as a source of information. Further it should be immaterial that they make a profit especially as they would reduce the burden of public enquiries. Adv. de Lange reiterated the point that the fees structure could be rendered irrelevant if people request all their information through newspapers and/or MPs. Ms Smuts (DP) stated that as the entire purpose of the Bill was about the right to information and accountable government was part of this, the media would play a key role in ensuring this. She used the example of Sweden to support her case. Sweden has a two-hundred-year-old information Act within the constitutional framework that gives the media complete and free access to information.

Various other comments were made on how the fees structure should function:
Ms Chohan-Kota (ANC) stated that commercial requesters would pay more to subsidise the whole system. However she wondered whether the paying of a set request fee and for the research of records were the most expensive elements of the fee system.
Ms Smuts (DP) thought it should be made possible for personal requesters to avoid any payment.
Ms de Lille (PAC) stated that as the idea of the fee structure was affordability and accessibility, categories should simply reflect what people could afford.
Mr Lever (DP) spoke of how the issuing of dog licences by municipal councils had led to administration costs that were greater than the income generated. He wondered that as this might be the case here, perhaps it might be more efficient to make the system free.
Mr Smith (IFP) agreed with Mr Lever stating that if applications were low then the cost of setting up the system might not be recuperated. He thought it might be better to make hard copy of information available that could be accessed for free. He also made the suggestion that fees could relate to how soon you wanted the document. Currently if you do not get the information requested within a reasonable period - 30 days - you do not have to pay. Would it be possible to make this a matter of choice so that if you were willing to wait longer you could pay a reduced fee or even nothing at all.
Ms Smuts supported the possibility that a fee structure would not generate income. In Australia and Canada there is an average of ten requests per department per month.
Ms Camerer made the suggestion that a fee structure could be phased in if it was found necessary.
It was agreed that all these ideas would be investigated by the department. It was agreed that there should be further investigation of how the fees of other international systems work.

A final interesting point was made by Mr Smith (IFP). When you do research you often find that what you want was not exactly what you were looking for and you often find more relevant information during the research process. The Bill does not cater for this. Mr Smith thought it would be beneficial if you could demand a mini-archive of information that you could then look through. He thought that there should be some way of catering for finding the most relevant information in an area you are interested in. It is a failing that the system only works if you know exactly what it is you are looking for.